Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Never let a good fiasco go to waste: why and how the governance of European football should be reformed after the demise of the ‘SuperLeague’ - By Stephen Weatherill

Editor’s note: Stephen Weatherill is the Jacques Delors Professor of European Law at Oxford University. He also serves as Deputy Director for European Law in the Institute of European and Comparative Law, and is a Fellow of Somerville College. This blog appeared first on eulawanalysis.blogspot.com and is reproduced here with the agreement of the author. 

 


The crumbling of the ‘SuperLeague’ is a source of joy to many football fans, but the very fact that such an idea could be advanced reveals something troublingly weak about the internal governance of football in Europe – UEFA’s most of all – and about the inadequacies of legal regulation practised by the EU and/ or by states. This note explains why a SuperLeague is difficult to stop under the current pattern of legal regulation and why accordingly reform is required in order to defend the European model of sport with more muscularity. More...



New Digital Masterclass - Mastering the FIFA Transfer System - 29-30 April

The mercato, or transfer window, is for some the most exciting time in the life of a football fan. During this narrow period each summer and winter (for the Europeans), fantastic football teams are made or taken apart. What is less often known, or grasped is that behind the breaking news of the latest move to or from your favourite club lies a complex web of transnational rules, institutions and practices.

Our new intensive two-day Masterclass aims to provide a comprehensive understanding of the FIFA Regulations on the Status and Transfer of Players (RSTP) to a small group of dedicated legal professionals who have the ambition to advise football clubs, represent players or join football governing bodies. The course combines theoretical insights on FIFA’s regulation of the transfer market with practical know-how of the actual operation of the RSTP distilled by hands-on practitioners.

Download the full Programme and register HERE.


The Team:

  • Dr Antoine Duval is a senior researcher at the Asser Institute and the head of the Asser International Sports Law Centre. He has widely published and lectured on transnational sports law, sports arbitration and the interaction between EU law and sport. He is an avid football fan and football player and looks forward to walking you through the intricacies of the FIFA transfer system.

  • Carol Couse is a Partner in the sports team at Mills & Reeve LLP , with extensive in-house and in private practice experience of dealing with sports regulatory matters, whether contentious or non-contentious.  She has advised on many multi million pound international football transfer agreements, playing contracts and image rights agreements on behalf clubs, players and agents.
  • Jacques Blondin is an Italian lawyer, who joined FIFA inundefined 2015, working for the Disciplinary Department. In 2019, he was appointed Head of FIFA TMS (now called FIFA Regulatory Enforcement) where he is responsible, among other things, for ensuring compliance in international transfers within the FIFA Transfer Matching System.
  • Oskar van Maren joined FIFA as a Legal Counsel in December 2017, forming part of the Knowledge Management Hub, a department created in September 2020. Previously, he worked for FIFA’s Players' Status Department. Between April 2014 and March 2017, he worked as a Junior Researcher at the T.M.C. Asser Instituut. He holds an LL.M in European law from Leiden University (The Netherlands).
  • Rhys Lenarduzzi is currently a research intern at the Asser International Sports Law Centre, where he focuses in particular on the transnational regulation of football. Prior to this, he acquired over 5 years of experience as a sports agent and consultant, at times representing over 50 professional athletes around the world from various sports, though predominantly football.




(A)Political Games? Ubiquitous Nationalism and the IOC’s Hypocrisy

Editor’s note: Thomas Terraz is a L.LM. candidate in the European Law programme at Utrecht University and a former intern of the Asser International Sports Law Centre

 

1.     Sport Nationalism is Politics

Despite all efforts, the Olympic Games has been and will be immersed in politics. Attempts to shield the Games from social and political realities are almost sure to miss their mark and potentially risk being disproportionate. Moreover, history has laid bare the shortcomings of the attempts to create a sanitized and impenetrable bubble around the Games. The first blog of this series examined the idea of the Games as a sanitized space and dived into the history of political neutrality within the Olympic Movement to unravel the irony that while the IOC aims to keep the Olympic Games ‘clean’ of any politics within its ‘sacred enclosure’, the IOC and the Games itself are largely enveloped in politics. Politics seep into the cracks of this ‘sanitized’ space through: (1) public protests (and their suppression by authoritarian regimes hosting the Games), (2) athletes who use their public image to take a political stand, (3) the IOC who takes decisions on recognizing national Olympic Committees (NOCs) and awarding the Games to countries,[1] and (4) states that use the Games for geo-political posturing.[2] With this background in mind, the aim now is to illustrate the disparity between the IOC’s stance on political neutrality when it concerns athlete protest versus sport nationalism, which also is a form of politics.

As was mentioned in part one of this series, the very first explicit mention of politics in the Olympic Charter was in its 1946 version and aimed to combat ‘the nationalization of sports for political aims’ by preventing ‘a national exultation of success achieved rather than the realization of the common and harmonious objective which is the essential Olympic law’ (emphasis added). This sentiment was further echoed some years later by Avery Brundage (IOC President (1952-1972)) when he declared: ‘The Games are not, and must not become, a contest between nations, which would be entirely contrary to the spirit of the Olympic Movement and would surely lead to disaster’.[3] Regardless of this vision to prevent sport nationalism engulfing the Games and its codification in the Olympic Charter, the current reality paints quite a different picture. One simply has to look at the mass obsession with medal tables during the Olympic Games and its amplification not only by the media but even by members of the Olympic Movement.[4] This is further exacerbated when the achievements of athletes are used for domestic political gain[5] or when they are used to glorify a nation’s prowess on the global stage or to stir nationalism within a populace[6]. Sport nationalism is politics. Arguably, even the worship of national imagery during the Games from the opening ceremony to the medal ceremonies cannot be depoliticized.[7] In many ways, the IOC has turned a blind eye to the politics rooted in these expressions of sport nationalism and instead has focused its energy to sterilize its Olympic spaces and stifle political expression from athletes. One of the ways the IOC has ignored sport nationalism is through its tacit acceptance of medal tables although they are expressly banned by the Olympic Charter.

At this point, the rules restricting athletes’ political protest and those concerning sport nationalism, particularly in terms of medal tables, will be scrutinized in order to highlight the enforcement gap between the two. More...


“Sport Sex” before the European Court of Human Rights - Caster Semenya v. Switzerland - By Michele Krech

Editor's note: Michele Krech is a JSD Candidate and SSHRC Doctoral Fellow at NYU School of Law. She was retained as a consultant by counsel for Caster Semenya in the proceedings before the Court of Arbitration for Sport discussed above. She also contributed to two reports mentioned in this blog post: the Report of UN High Commissioner for Human Rights,  Intersection of race and gender discrimination in sport (June 2020); and the Human Rights Watch Report, “They’re Chasing Us Away from Sport”: Human Rights Violations in Sex Testing of Elite Women Athletes (December 2020).

This blog was first published by the Völkerrechtsblog and is republished here with authorization. Michele Krech will be joining our next Zoom In webinar on 31 March to discuss the next steps in the Caster Semenya case.



Sport is the field par excellence in which discrimination
against intersex people has been made most visible.

Commissioner for Human Rights, Council of Europe
Issue Paper: Human rights and intersex people (2015)


Olympic and world champion athlete Caster Semenya is asking the European Court of Human Rights (ECtHR) to make sure all women athletes are “allowed to run free, for once and for all”. Semenya brings her application against Switzerland, which has allowed a private sport association and a private sport court to decide – with only the most minimal appellate review by a national judicial authority – what it takes for women, legally and socially identified as such all their lives, to count as women in the context of athletics. I consider how Semenya’s application might bring human rights, sex, and sport into conversation in ways not yet seen in a judicial forum. More...







New Event - Zoom In - Caster Semenya v. International Association of Athletics Federations - 31 March - 16.00-17.30 CET

On Wednesday 31 March 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), is organising its fourth Zoom In webinar on the recent developments arising from the decision of the Swiss Federal Tribunal (SFT) in the case Caster Semenya v. International Association of Athletics Federations (now World Athletics), delivered on 25 August 2020.


Background
The participation of athletes with biological sex differences to international competitions is one of the most controversial issues in transnational sports law. In particular, since 2019, Caster Semenya, an Olympic champion from South-Africa has been challenging the World Athletics eligibility rules for Athletes with Differences of Sex Development (DSD Regulation), which would currently bar her from accessing international competitions (such as the Tokyo Olympics) unless she accepts to undergo medical treatment aimed at reducing her testosterone levels. In April 2019, the Court of Arbitration for Sport rejected her challenge against the DSD Regulation in a lengthy award. In response, Caster Semenya and the South African Athletics Federation filed an application to set aside the award before the Swiss Federal Tribunal. In August 2020, the SFT released its decision rejecting Semenya’s challenge of the award (for an extensive commentary of the ruling see Marjolaine Viret’s article on the Asser International Sports Law Blog).

Recently, on 25 February 2021, Caster Semenya announced her decision to lodge an application at the European Court of Human Rights (ECtHR) against Switzerland on the basis of this judgment. In this context, we thought it important to organise a Zoom In webinar around the decision of the SFT and the pending case before the ECtHR. Indeed, should the ECtHR accept the case, it will be in a position to provide a definitive assessment of the human rights compatibility of the DSD Regulation. Moreover, this decision could have important consequences on the role played by human rights in the review of the private regulations and decisions of international sports governing bodies.


Speakers


Participation is free, register HERE.

New Video! Zoom In on World Anti-Doping Agency v. Russian Anti-Doping Agency - 25 February

Dear readers,

If you missed it (or wish to re-watch it), the video of our third Zoom In webinar from 25 February on the CAS award in the World Anti-Doping Agency v. Russian Anti-Doping Agency case is available on the YouTube channel of the Asser Institute:



Stay tuned and watch this space, the announcement for the next Zoom In webinar, which will take place on 31 March, is coming soon!

A Reflection on Recent Human Rights Efforts of National Football Associations - By Daniela Heerdt (Tilburg University)

Editor's Note: Daniela Heerdt is a PhD researcher at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She published a number of articles on mega-sporting events and human rights, in the International Sports Law Journal, Tilburg Law Review, and the Netherlands Quarterly of Human Rights.

 

In the past couple of years, the Fédération Internationale de Football Association (FIFA) made remarkable steps towards embedding human rights into their practices and policies. These developments have been discussed at length and in detail in this blog and elsewhere, but a short overview at this point is necessary to set the scene. Arguably, most changes were sparked by John Ruggie’s report from 2016, in which he articulated a set of concrete recommendations for FIFA “on what it means for FIFA to embed respect for human rights across its global operations”, using the UN Guiding Principles on Business and Human Rights (UNGPs) as authoritative standard.[i] As a result, in May 2017, FIFA published a human rights policy, in which it commits to respecting human rights in accordance with the UNGPs, identifies its salient human rights risks, and acknowledges the potential adverse impacts it can have on human rights in general and human rights of people belonging to specific groups. In October 2017, it adopted new bidding regulations requiring bidders to develop a human rights strategy and conduct an independent human rights risk assessment as part of their bid. In March 2017, FIFA also created a Human Rights Advisory Board, which regularly evaluated FIFA’s human rights progress and made recommendations on how FIFA should address human rights issues linked to its activities. The mandate of the Advisory Board expired at the end of last year and the future of this body is unknown at this point.

While some of these steps can be directly connected to the recommendations in the Ruggie report, other recommendations have largely been ignored. One example of the latter and focus of this blog post is the issue of embedding human rights at the level of national football associations. It outlines recent steps taken by the German football association “Deutscher Fussball-Bund” (DFB) and the Dutch football association “Koninklijke Nederlandse Voetbalbond” (KNVB) in relation to human rights, and explores to what extent these steps can be regarded as proactive moves by those associations or rather spillover effects from FIFA’s human rights efforts. More...

New Event! Zoom In on World Anti-Doping Agency v. Russian Anti-Doping Agency - 25 February - 16:00-17:30 CET

On Thursday 25 February 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), organizes a Zoom In webinar on the recent award of the Court of Arbitration for Sport (CAS) in the case World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency (RUSADA), delivered on 17 December 2020.


Background
In its 186 pages decision the CAS concluded that RUSADA was non-compliant with the World Anti-Doping Code (WADC) in connection with its failure to procure the delivery of the authentic LIMS data (Laboratory Information Management System) and underlying analytical data of the former Moscow Laboratory to WADA. However, the CAS panel did not endorse the entire range of measures sought by WADA to sanction this non-compliance. It also reduced the time frame of their application from four to two years. The award has been subjected to a lot of public attention and criticisms, and some have expressed the view that Russia benefited from a lenient treatment.   

This edition of our Zoom in webinars will focus on assessing the impact of the award on the world anti-doping system. More specifically, we will touch upon the decision’s effect on the capacity of WADA to police institutionalized doping systems put in place by certain states, the ruling’s regard for the rights of athletes (Russian or not), and its effect on the credibility of the world anti-doping system in the eyes of the general public.


To discuss the case with us, we are very happy to welcome the following speakers:


Participation is free, register HERE.

Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 5: Rethinking Redistribution in Football - By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi recently completed a Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

 

As one may have gathered from the series thus far, the question that comes out of this endeavour for me, is whether redistribution in football would be better divorced from the transfer system?

In my introductory blog I point towards historical, cultural, and of course the legal explanations as to why redistribution was established, and why it might be held onto despite obvious flaws. In my second blog, I point out how the training compensation and solidarity mechanisms work in practice through an African case study, as well as the hindrance caused and the Eurocentricity of the regulations. The key take-away from my third blog on the non-application of training compensation in women’s football might be that training compensation should apply to both men’s and women’s football, or neither. The sweeping generalisation that men’s and women’s football are different as justification for the non-application to the women’s game is not palatable, given inter alia the difference between the richest and poorest clubs in men’s football. Nor is it palatable that the training compensation mechanism is justified in men’s football to incentivise training, yet not in women’s football.

In the fourth blog of this series, I raise concerns that the establishment of the Clearing House prolongs the arrival of a preferable alternative system. The feature of this final blog is to consider alternatives to the current systems. This endeavour is manifestly two-fold; firstly, are there alternatives? Secondly, are they better?  More...


Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 4: The New FIFA Clearing House – An improvement to FIFA’s training compensation and solidarity mechanisms? - By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi recently completed a Bachelor of Law (LL.B) and a Bachelor of Philosophy (B.Phil.) at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

In September 2018, the Football Stakeholders Committee endorsed the idea of a Clearing House that was subsequently approved in October of the same year by the FIFA Council. A tender process commenced in July 2019 for bidders to propose jurisdiction, operation and establishment. Whilst many questions go unanswered, it is clear that the Clearing House will be aimed at closing the significant gap between what is owed and what is actually paid, in respect to training compensation and solidarity payments. The Clearing House will have other functions, perhaps in regard to agents’ fees and other transfer related business, though those other operations are for another blog. It will hence act as an intermediary of sorts, receiving funds from a signing and therefore owing club (“new” club) and then moving that money on to training clubs. Whilst separate to FIFA, to what extent is unclear.

I have landed at the position of it being important to include a section in this blog series on the soon to commence Clearing House, given it appears to be FIFA’s (perhaps main) attempt to improve the training compensation and solidarity mechanisms. As will be expanded upon below, I fear it will create more issues than it will solve. Perhaps one should remain patient and optimistic until it is in operation, and one should be charitable in that there will undoubtedly be teething problems. However, it is of course not just the function of the Clearing House that is of interest, but also what moving forward with the project of the Clearing House represents and leaves unaddressed, namely, the issues I have identified in this blog series. More...

Asser International Sports Law Blog | The Russian Ballet at the CAS Ad Hoc Division in Rio - Act V: Saving the last (Russian) woman standing: The Klishina miracle

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The Russian Ballet at the CAS Ad Hoc Division in Rio - Act V: Saving the last (Russian) woman standing: The Klishina miracle

Editor's note: This is the (belated) fifth part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio. The other acts are available at:


Act V: Saving the last (Russian) woman standing: The Klishina miracle 

Darya Klishina is now an Olympic celebrity. She will enter the history books not because she won a gold medal or beat a world record. Instead, her idiosyncrasy lies in her nationality: she was the sole Russian athlete authorized to stand in the athletics competitions at the Rio Olympics. And yet, a few days before the start of the long jumping contest in which she was due to take part, the IAAF surprisingly decided to revoke her eligibility (‘And Then There Were None’). But Klishina appealed the decision to the CAS ad hoc Division and, as all of you well-informed sports lawyers will know, she was allowed to compete at the Olympics and finished at a decent ninth place of the long jump finals.

Two important questions are raised by this case:

  • Why did the IAAF changed its mind and decide to retract Klishina’s authorization to participate?
  • Why did the CAS overturn this decision?


A.    The IAAF’s second thoughts over the implication of Klishina

What happened between 9 July, when Klishina was first green lighted by the IAAF Doping Review Board (DRB) and 10 August when the DRB revoked its previous decision to let her compete? Basically, the publication of the McLaren Report, and especially evidence showing “that the Applicant had been directly affected and tainted by the State-organised doping scheme described in the IP Report”.[1] More concretely, according to the Report, Klishina was affected in the following three ways:

      i.   “a sample collected on 26 February 2014, yielding a T/E ratio of 8.5, had been subject to a "SAVE" order by the Ministry of Sport on 3 March 2014;

      ii.   a sample collected on 17 October 2014 and subsequently seized by WADA December 2014 was found to bear marks and scratches consistent with the removal of the cap and contained urine from the Applicant but also from another female athlete; and

      iii.  a sample collected on the occasion of the 2013 IAAF World Championships in Moscow was also found to bear marks and scratches consistent with the removal of the cap.”[2]

In its original decision, the DRB had reserved its right “to reconsider the Applicant’s case should information ever be brought to its attention (including but not limited to as a result of the current investigation being conducted by Professor McLaren on behalf of WADA) that the Doping Review Board considers is such as to undermine the basis upon which the application was accepted”.[3] Thus, unsurprisingly, the CAS acknowledged that the DRB had the competence to reconsider the eligibility granted to the athlete. Nonetheless, surprisingly, it found that such reconsideration was not legitimate in light of the new information gathered.


B.    The surprising decision of CAS to let Klishina jump

Klishina won in front of the CAS. From the outset this is a surprising decision, since she was at least as implicated in the IP Report as numerous other Russian athletes who were barred from entering the Games.[4] Indeed, she had clearly profited from being “saved” by the Russian Ministry of Sport. So why on earth would the CAS decide to let her jump?

This decision is intimately linked with the legal basis of the original decision of the DRB. Despite the repeated view of the IOC that the IAAF policy was stricter than its own,[5] the Klishina case demonstrates that this is not universally true in practice. The main point was that the IAAF’s DRB had recognized that since 1 January 2014, Klishina “had been subject to fully compliant drug testing in- and out-of-competition”[6] and therefore fulfilled the criteria enshrined in the IAAF Competition rule 22.1A(b). This was based on the following factual findings:

  • “The fact that she had spent 632 days out of Russia, being 86.6% of her time, in the Relevant Period;
  • She had relocated permanently to the United States in March 2014 and had been trained under a US coach since October 2013;
  • She regularly competes in competitions on the international circuit;
  • A total of 11 samples had been collected from the Applicant outside of Russia in the Relevant Period;
  • 1 sample had been collected by the IAAF since June 2016 and sent for analysis by a laboratory outside of Russia.”[7]

The question is then whether the new information, indicating that Klishina was implicated and benefitted from the Russian doping scheme, recognized as valid by the Panel[8], could justify revisiting the first decision. In other words, could this new information lead to reconsidering the eligibility of Klishina under the regime of IAAF Competition rule 22.1A(b) on which the original decision was based? To assess this, the Panel starts by pointing out that the rule “is not the same as the decision of the IOC Executive Board made after the publication of the IP Report. (…) As the parties agreed, the IOC Executive Board decision is not in evidence in this case and decisions of the Ad hoc Panel of the CAS for the Games of the XXXI Olympiad in Rio de Janeiro as to the application of, or the terms of, the IOC Executive Board decision are not applicable”.[9]

The CAS Panel insists that the IAAF’s DRB “was comfortably satisfied that during the Relevant Period the Applicant satisfied each of the criteria set out in the Rule for exceptional eligibility, notwithstanding the suspension of the National Federation”.[10] Furthermore, “in making its findings, the DRB was aware of, and took no account of, tests conducted in Russia and that it was cognisant of inadequacies in the system of testing in Russia, for which RusAF had been suspended”.[11] Those are decisive conclusions that will lead to the second decision being set aside. The CAS Panel was of the view “that the conclusion reached in the Second Decision, and the basis for that decision, are not in accordance with the Rule which was purportedly invoked”.[12] It is so, because “the further evidence considered by the DRB for the purposes of the Second Decision did not undermine its finding in the First Decision that the Applicant was eligible to compete by reason of her compliance with the Rule”.[13] This analysis leads to an unfair solution as the undisputed evidence points at Klishina profiting not once but on three occasions from the Russian doping scheme and still this evidence is not considered as relevant to reconsider the IAAF’s original decision to let her jump.

This decision is grounded on the following legal reasoning: the Panel considers that the “implication [of Klishina in the State-doping system] is not relevant to the application of criteria which, if fulfilled, mean that for the purposes of the Rule [22 IAAF], the Applicant is not affected or tainted by the failures of the National Federation”.[14] The CAS Panel is of the view that the IAAF Rule “provides for a mechanism or a basis by which an athlete is granted exceptional eligibility”.[15] And this “mechanism is fulfilment of the two criteria which, for this athlete, was established by the DRB in the First Decision”.[16] Thus, the “fact that the athlete was subjected to or the subject of drug testing that was not fully compliant during the Relevant Period does not derogate from the fact that she was, during the Relevant Period (that is, ‘a sufficiently long period’), subject to fully compliant drug testing in- and out-of- competition by reason of the fact that she was during that time training in and resident in the United States and not in Russia”.[17] Additionally, “there is no evidence to suggest that the testing that she was subject to was other than equivalent in quality to the testing to which her competitors were subject”.[18] In other words, “an athlete may have undergone non-compliant testing while concurrently being subject to fully compliant testing and still fulfil the second criterion”.[19] This is comforted by the fact “that the Rule is addressed to the suspension of any International Federation for failure to put in place an adequate system and the impact on the eligibility of the athlete” and the “criteria are directed to the establishment by an athlete that he or she is outside the country of his or her National Federation during the Relevant Period”.[20] Hence, it “is not addressed to the implication of an athlete in a defective system”.[21] Instead, “it states that an athlete is taken not to be affected or tainted by the action of the National Federation if he or she was subject to other, compliant systems outside of the country”.[22] In a nutshell, for the CAS Panel, the “relevant question is not whether the athlete was affected by the Russian System, or how, or whether she had knowledge of the way in which the system worked”.[23] No, the only question is “whether she fulfilled the criteria of the Rule”.[24] And the answer to that question is: she did early July; and she still does in August!

This case is disconcerting as it contradicts the line of cases regarding the implication of athletes in the IP Report discussed a few days ago. The CAS relied on the ambiguous wording of the IAAF provision to offer an escape route to Klishina. In doing so, it disregarded the spirit and objective of the provision, which was to provide a mechanism for athletes who were not personally tainted by the Russian doping scandal to participate in IAAF competitions. Yet, another aspect of the case is even more bizarre. Why did the IOC not block the eligibility of Klishina on the basis of paragraph 2 of the IOC Decision? She was undoubtedly implicated and benefited from the scheme. In fact, only one of the three sources of implication provided by McLaren should (and would) have been enough for the IOC Review Panel and the CAS arbitrator reviewing her eligibility to discard her from the Olympics. It did not happen, Zeus only knows why…

 

Epilogue

These five blogs have discussed the awards rendered by the CAS ad hoc Division in Rio involving Russian athletes wishing to compete at the Olympics. In general, the CAS has been willing, with few exceptions (Efimova and Klishina), to approve the ineligibility of Russian athletes. Rightfully, in my view, the CAS has supported the IFs that have opted for a strict approach in dealing with the eligibility of Russian athletes for the Rio Olympics. The CAS has also unsurprisingly rebutted the blunt rule of the IOC excluding Russian athletes who were previously sanctioned for doping. But, it has surprisingly let Klishina jump, in spite of all the factual elements pointing at her being implicated in, and having profited from, the Russian State-doping scheme. Overall, the CAS ad hoc Division has served its purpose as a review instance well, forcing the IFs and the IOC to properly justify their decisions and providing an avenue for the Russian athletes to be heard.

These cases also highlight the variety/plurality of responses to the Russian doping scandal and its impact on the eligibility of Russian athletes for the Rio Olympics. It seems that some IFs have taken WADA’s call for a strong response of the SGBs seriously. Unfortunately, and this is one of the negative consequences of the IOC’s decision to not decide, due to a lack of information, it is impossible to assess the different policies of the IFs which have not faced (due to their reluctance to act or else) a challenge of their eligibility decisions in front of the CAS ad hoc Division. In light of recent revelations concerning the International Swimming Federation (FINA) it is likely that a number of IFs decided to interpret narrowly the IOC criteria and waved through the overwhelming majority of Russian athletes without a proper check.

Finally, the awards show that CAS arbitrators would have been ready to condone a general exclusion of Russian athletes, with a narrow exception for those not tainted by the scandal or who could not benefit from the scheme because they were residing outside of the Russian Federation (this is very much the position adopted in the recent decision of the CAS in the dispute between the Russian Paralympic Committee and the International Paralympic Committee). The CAS recognized the seriousness of the situation and the collective responsibility of Russian sports organizations. It seemed also ready to follow up on this collective responsibility by endorsing collective sanctions that would most likely have been found compatible with the Russian athletes ‘natural rights’. Hence, ultimately, the IOC’s decision to let the Russian athletes compete at the Rio Olympics may have been politically unavoidable, but was certainly not legally mandated. I leave you to appreciate whether this decision is compatible with the IOC’s proclaimed fundamental values and its commitment to enforcing the World Anti-Doping Code. What is certain, however, is that the World Anti-Doping System needs an overhaul (for some reform proposals/directions see here) sooner rather than later.


[1] CAS OG 16/24 Darya Klishina v. IAAF, para. 2.12.

[2] Ibid.

[3] Ibid., para. 2.8.

[4] See Act II of this blog series.

[5] See CAS OG 16/13 Anastasia Karabelshikova and
Ivan Podshivalov v. 
World Rowing Federation (FISA)
and
International Olympic Committee (IOC), para. 7.14 and CAS OG 16/12 Ivan Balandin v. FISA & IOC, para. 7.22.

[6] CAS OG 16/24 Darya Klishina v. IAAF, para. 7.3.

[7] Ibid., para. 7.14.

[8] Ibid., paras 7.40-45.

[9] Ibid., para. 7.24.

[10] Ibid., para. 7.34.

[11] Ibid., para. 7.35.

[12] Ibid., para. 7.46.

[13] Ibid.

[14] Ibid., para. 7.56.

[15] Ibid.

[16] Ibid.

[17] Ibid., para. 7.57.

[18] Ibid.

[19] Ibid., para. 7.58.

[20] Ibid., para. 7.60.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid.

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